No Change From Obama on Indefinite Detention

The Obama Administration has blown its first chance to signal change from the Bush Administration in the treatment of detainees.

In a case brought by four detainees at Guantanamo alleging torture (details of Rasul v. Rumsfeld here,) the Obama Justice Department has filed a brief arguing that detainees have no constitutional rights and that, even if they did, the Administration officials are immune from liability

In another Guantanamo case, the Justice Department argues in a brief (pdf)that the U.S. has the right to indefinitely hold detainees. The Attorney General's press release is here.

"It is deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn't engage in hostilities against the United States. Once again, the Obama administration has taken a half-step in the right direction.

The Justice Department's filing leaves the door open to modifying the government's position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years."

In the torture case, The Center for Constitutional Rights says:

The Department of Justice, with its first opportunity under the new administration to address the issue of torture and religious abuse, argued that detainees had no constitutional rights and that, even if they had enforceable rights, the defendant officers are immune from liability because the detainees’ right not to be tortured and to practice their religion without abuse was “not clearly established” at the time of their detention.

In addition, with respect to religious rights, the Justice Department’s brief supported the Appeals Court’s earlier holding that Guantanamo detainees are not protected by RFRA both because detainees are not “persons” under the Constitution, and because the statute was not meant to apply to them. Finally, the government argued that the detainees’ case should be dismissed because of “special factors” “involving national security and foreign policy.”

CCR opines:

There is one word that the Department of Justice never uses—torture—but the upshot of the Justice Department’s position is that there is no right of detainees not to be tortured and that officials who order torture should be protected,” said Eric Lewis, lead counsel for the detainees. “We believe that this position is clearly no longer tenable after the Supreme Court’s ruling and that the fundamental rights not to be tortured and to be free to practice one’s religion free of abuse will be vindicated, if not by the D.C. Circuit, then by the Supreme Court.”

[Edited to clarify there are two different cases in which the Obama Administration has filed briefs, one in a torture case and one in a case involving detention.]

ruled yet on any case arising from these detentions when the conduct complained of happened. Those acting "under color of law" are entitled to notice their actions are unlawful. But, yes, I'd hate to be in the position of requesting summary judgment based on such an argument.

and seeing our soldiers held by the North Vietnamese..in camps..and I no longer believe we have a dang bit of Moral ground left. I know darned well my father, grandfather and father in law and husband did not wear the US Uniform for this crap.They fought to defend the constitution.
We have treaties that are today the constitution, and I don't care how the courts and judges try to manipulate the law to interpret Torture or renditions, and keeping human beings against the very foundation of the Constitution. Wrong is wrong, right is right. What is being done is wrong.Parse it anyway you like..but wrong is still wrong.Illegal is still illegal. And the Constitution tells us what is being done is wrong.No amount of parsing will change that.
I used to be proud to call myself "AMERICAN"..I no longer have that pride.
I feel nothing but shame..I feel shame that we are now no better than those who kept our soldiers in Vietnam illegally!
I have never forgotten those images of young men kept in the nam camps..and now we are no better.
What a disgrace, and anyone who paid attention knew darn well, Obama was going to be little different than the last Admin.

I see the shift from the "enemy combatant" rationale as important. The Bush administration's justification for its treatment of prisoners rested on their theory of the unitary executive, and it is out of that theory that Bush justified creating a novel category of "enemy combatants" that were outside existing law. If Obama is abandoning that category and returning to arguments that recognize the legal categories as defined by Congress and international treaties, then Obama is submitting the executive to the rule of law. His arguments about length of detention and legal treatment will have to pass traditional legal tests fitting the definitions of a POW and a person.

From a specifically human rights perspective this may be inadequate, but from a broader civil society perspective this is an important step toward recognizing the centrality of human rights in our system of laws.

Why not just give them Geneva rights (even though they are not soldiers) and thus be able to detain them until the end of the war with no habeas corpus, trial, etc. Or is Jeralyn advocating that POW's in a war also be given trials, habeas, etc.